Copyright Reform Proposals submitted by MEP Christian Engström

Christian Engström is a Swedish programmer, activist and political activist. In April 2012, along with Ricard Falquing, he presented the European Parliament with a book in which they look at the main problems of modern copyright, make proposals for changing current legislation, and analyze the impact these changes may have on the cultural sector.

On Habré have already been published some chapters from this book, about the history of copyright , censorship and penalties In discussing these articles, habra users often asked questions about what conclusions the authors draw and what they offer. Therefore, I decided to publish a translation of the chapter where this issue is discussed in detail.

Moral (non-proprietary) rights are unchanged.

We propose not to change the author’s moral right to be called an author. If you created something, you have the right to be known as the author of your creation.
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This part of the copyright is absolutely indisputable. In fact, netiquette is often stricter on this issue than copyright laws.

Bloggers refer to sources and authors much more carefully than the law requires. There are several reasons for this. If you put links to sources, your blog will be more credible, as people can check the information if they want. This will please the people you refer to, so maybe they will also want to post a link to our blog and eventually increase traffic. These are good practical reasons why a blogger is interested in specifying authors more than any law requires.

But there is also a simple human feeling, when you find something interesting for you, you want to know who to say thank you for. This is human nature, and its very positive side.

The right to be called the author of the Internet does not threaten, and we propose to change nothing in this part of the copyright laws.

Free non-commercial exchange

Attempts to stop file sharing by tightening laws do not work. File sharing continues to grow exponentially, no matter what kind of repressive measures governments introduce.

If you think it would be better if illegal file sharing were destroyed, please think so. But this will not change the fact: limiting file sharing by laws and penalties does not work. Tightening this practice will not work either. File sharing will be whether someone likes it or not.

Copyright must be preserved, but it must act only where there is a commercial interest. Any non-commercial copying and use, such as file sharing, must be legalized. We can add this as a limitation in copyright law, in full compliance with international treaties, such as the Berne Convention and the WIPO Treaty (WCT).

In chapter 3, we showed how attempts to implement a ban on file sharing today threaten fundamental human rights in Europe and around the world, which would be an unacceptable solution, even if it worked, but it did not work, or if the cultural sector actually died , and he does not die.

In Chapter 5, we showed that the artists and the cultural sector as a whole feel great, despite the file sharing (and possibly because of it), so there is no real problem.

A key issue for Europe is how to separate commercial use from non-commercial.

If copyright is put back in place, to regulate only commercial activity, this will not be a big problem for society. Some changes will have to be made (in particular, to adjust unreasonably long deadlines), but in principle there are no problems with copyright protection in commercial areas.

The reason is very simple. The “follow the money” principle is enough for the authorities to be able to track commercial activity. If an entrepreneur wants to make money, the first thing he does is tell as many people as possible what he wants to offer. If he offers something illegal, the police will know about it long before he has time to reach a significant number of buyers. No further restrictions on fundamental rights are required. Existing surveillance systems are quite enough to keep track of commercial activities.

But where does the line between commercial and non-commercial go?

Indeed, there is a gray area between commercial and non-commercial activities, but the courts have already solved this problem many times in different areas.

We already have several laws that distinguish between commercial and non-commercial purposes, including copyright in the form in which it exists today. This is good, as it means that the courts already have the practice of determining what is commercial and what is not.

If you want to know exactly where the line goes, ask a copyright lawyer (it costs 300 euros per hour). He will tell you how the courts interpret current laws, and in this case they are experts.

But to put it simply, the line between commercial and non-commercial goals goes exactly where you can expect. If you, as an individual, have a blog, without advertising, this is a non-commercial project. If you get a few euros per month from Google Ads, your blog is more likely to be non-profit, as this is a small amount of money and the main purpose of a blog is not to make money on it. But if it’s a big blog that generates a steady ad revenue, it’s probably crossing the line and becoming a commercial project.

There are a number of licenses, including the Creative Commons Attribution - NonCommercial , which are based on an existing definition.

Although holding a line can sometimes be a problem, it has already been successfully solved.

20 years of commercial monopoly

Much of the modern entertainment industry is based on the commercial exclusivity of copyrighted works. We want to keep this position. But the current terms of protection - 70 years after death - is absurd. No investor will even consider a business project that would pay off in such a long time.

We want to reduce the term of protection to values ​​that are fair both from the point of view of society and of investors. We offer 20 years from the time of publication. And we want the protection conditions to be the same for all types of works.

But wouldn't it be logical to have different dates for different types of work? 20 years of protection for computer programs is probably not the same as 20 years for a movie or a song. Wouldn't it be better to set deadlines for different categories of work?

That is how I (Christian Engström) thought myself, until I discussed it with a friend, who completely agreed with me. When we started the conversation, we both agreed that it would be reasonable to have different terms of protection, as both markets are very different.

I, a programmer in the past, thought that it would be reasonable to have a longer period of protection for computer programs, since they are often very useful many years after they are written. The code that I wrote in 1984-86 is still used, and continues to generate revenue for the company. It is quite another thing - a popular song, which, at best, is known for a year or so, then everyone will forget it and other songs will replace it. I thought so.

But my friend, who used to be a musician (and now he is a copyright lawyer, because they are paid more), had a completely opposite opinion. It seemed to him that all programs are updated every 2–3 years, and older programs have no commercial value, therefore for programs only a very short period of protection is sufficient. Music, on the contrary, can often live forever, and therefore the protection time for music should be much longer. So he thought.

And so it usually happens, my friend told me, who discussed it with other people. For those things that are close to you, you usually consider it reasonable to have long periods of protection, and for everything else - short ones. Most people think so.

For this reason, we probably will not be able to find a solution, which types of work should be large and which should be shorter terms of protection. In such discussions, when you try to agree on a limit of X years, it is natural that all proposals for the values ​​of this X tend to be random, taken from the ceiling. If you aim to choose different semi-random values ​​for each category of work, this will only complicate the task and reduce the chances of finding a solution that can be supported by objective arguments.

But if you look at the problem from the investor’s point of view, everything changes. The music industry may be very different from the computer software sector, but they have one thing in common. Money is money, no matter where you decide to invest it.

When an investor decides to choose a project - be it music, film, or a program, or something else - he will expect to return the investment in a certain time. If everything goes according to plan, it is assumed that the project will pay off and make a profit in X years. If not, the project failed.

In such calculations, X is always a very small number. Almost never happens in the cultural sector, someone seriously engaged in a business project that should pay off in more than 3 years. People who build bridges, nuclear reactors or something like that, of course, have farther investment horizons, but outside of these areas, generally in business, projects for more than 3 years are very rare.

And of course for the cultural sector this is even more true. Who can predict what will be cool and stylish in 2 or 3 years, in such a rapidly changing landscape as culture. Most of these projects are expected to pay off and make a profit within a year.

Considering the terms of protection from the investor's point of view, we can justify the existence of the same period for any works, although they are very different. The purpose of economic exclusivity, as part of a copyright, is to attract investors to the cultural sector. And investors think the same, no matter where they invest.

The project should pay off and make a profit within a few years, otherwise it is a failure. A small theoretical chance that the work you have funded will become an eternal classic that will bring profit for decades, this is a pleasant bonus for the investor, but such thoughts have no place in serious business calculations.

So why 20 years, not 5 or 3?

Our offer of terms of protection is a pragmatic compromise. Although there are strong arguments why 5 years or even less would be enough from the point of view of society, many people instinctively feel that 5 years is too little, at least in some cases.

And instead of tying in useless quarrels about what will always remain at least partially random numbers, we decided to choose 20 years.

The main thing is to move away from today's numbers that exceed the lifetime of a person. Such terms are obviously harmful to society, since they actually keep most of the common cultural heritage under lock and key, although the vast majority of the works have completely lost commercial value for rightholders. This is a heavy loss from an economic point of view, and gross cultural arbitrariness.

If we reduce the time of protection to 20 years, this would solve most of the problem of the “black hole of the 20th century”, and would allow librarians and collectors to begin the necessary work of saving the works of the 20th century that are rotting in the archives by digitizing them. From their point of view, 5 or 10 years would be better, but even 20 would be nice.

At the same time, 20 years is enough to support a pleasant (but very unlikely) dream of creating a superhit that will become eternal and will bring profit for decades. If your next project fires and unexpectedly brings you the same unfading glory that Paul McCartney or ABBA use, 20 years will be more than enough for you to become very rich, and never again worry about money.

Registration after 5 years

Orphan works are works that are still protected by copyright, but for which it is difficult or impossible to determine the owner of the rights. It can be a book, song, film, photo, or any other work that falls under the protection of copyright.

Orphan works are a big problem for anyone who would like to use them. If you do this without permission, there is a risk that the right holder will suddenly appear and sue you for a large amount. As we all know, the courts are already prepared to claim damages even for minor violations in the form of astronomical numbers. In many cases, this is simply an unacceptable risk.

But since the copyright holder, whom you could ask permission from, is unknown, you cannot do anything about it. No matter what you think, how valuable it would be to share this work with people, you cannot do this without breaking the law, and without putting yourself at serious financial risk. Orphan works are actually mothballed by the copyright system.

This is not a minor or minor problem. A huge part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that google would like to digitize through its Google Books initiative are no longer published, but are still protected by copyright.

Although theoretically for many of these books you can find the copyright holder through a thorough investigation of each particular case, it becomes almost unreal if you want to carry out a massive digitization.

Google Books is not the only digitization project to make them available, although it was he who recently attracted attention. There is a European project Europeana with a similar goal, and the open initiative Project Gutenberg . All of them are faced with the problem of orphan works.

If we do not undertake anything, a huge part of our common cultural heritage of the 20th century risks disappearing into a black hole before it is allowed by law to preserve it for posterity.

Reducing the copyright deadline to 20 years would solve this problem for the most part, but due to technical legislative problems this is unlikely to happen soon. To shorten the timeframe, several international agreements such as the Berne Convention need to be revised. And although Europe undoubtedly has the political and economic forces to do this, if there is political will, even in the best case, it will take a long time. We need something that can be done faster.

We propose that copyright (including a monopoly on commercial use and distribution) be given without registration, automatically upon publication of the work, as is happening now. But if the owner of the rights wants to continue to use the commercial monopoly for more than 5 years, he will have to register the work after 5 years have passed.

Rights holders who decide not to register their rights to work published more than 5 years ago will still retain copyright as such, but will be considered as abandoning their commercial monopoly without registering work.

From the technical point of view of the law, this is fully compatible with the Bern Convention, since it does not change the existence of law, but merely adds a reasonable and justified condition for the application of this right.

All that is required is if you want to receive money for using work that is more than 5 years old, you will have to specify in the public database how to contact you and where to transfer money. This requirement can not be called burdensome or unreasonable.

At the same time, the existence of a public database in which anyone interested in the commercial use of work can easily find the corresponding right holder, of course, will be beneficial to the right holders themselves. If you want to sell something, telling your data to potential buyers is obviously in your own interest.

Registration after 5 years is an offer that is beneficial for everyone, which can be implemented quickly and easily.

Free sampling

In the description of the documentary film "Copyright Criminals", the American broadcaster PBS writes :

Long before people started publishing home videos on the Internet, hip-hoppers were refined in the art of audio editing through sampling. Sampling is as old as the music itself, but new technologies introduced in the 80s and 90s made it easier to use existing recordings. Bands such as Public Enemy, De La Soul and the Beastie Boys created complex rhythms, transitions and nuances from the original sounds and sounds they liked. But in the early 90s, sampling was in conflict with the law. When record lawyers got involved, what was once called a “borrowed tune” became “copyright infringement.”

The film Copyright Criminals examines the creative and commercial value of sampling in music, including the related debate about artistic expression, copyright and money. The film shows both the ancestors of hip-hop, such as Public Enemy, De La Soul, and Digital Underground, as well as new artists, such as the eclectic Method audiovisual remixers. It also contains personal interviews with sampled artists such as Clyde Stubblefield - drummer James Brown, the most-sampled musician in the world, and comments from another frequently-sampled musician, the funk legend of George Clinton.

Computers, mobile phones and other interactive technologies are changing our relationship with the media, blurring the line between the producer and the consumer and radically changing the meaning of the concept of creativity. As artists find more and more inventive ways to use old materials in new works, Copyright Criminals asks the question: “Can one own sound”?

Now the answer to this question, unfortunately, is yes. Major recording companies do claim that they own individual sounds and very short samples. If you're a musician, get ready to pre-pay thousands of euros for licensing the samples you need if you are going to publish your music.

This is obviously an unjustified restriction on the right to create new cultural works.

Filmmakers and other artists who want to create new works, partly using existing ones, face the same problem.

We want to change this by introducing clear exceptions and limitations to allow remixes and parodies, as well as to introduce the rights of citing audio-video materials, similar to the citation rights that now exist for texts.

DRM ban

The purpose of these proposals on the reform of copyright is to obtain a balanced law that is beneficial for society as a whole, including for consumers. But having the right to do something according to the law does not have special value if you do not have the practical possibility to do it.

DRM is short for Digital Rights Management or Digital Restrictions Management. This term is used to refer to different technologies, the purpose of which is to limit the ability of people (consumers) to use and copy works, even if they have a legal right to do so.

In his book "Free Culture", Professor of Justice Lawrence Lessig gives an example of an electronic book published by Adobe. This is the book "Alice in Wonderland", published for the first time in 1865, the copyright of which has long expired. And therefore, anyone has the legal right to do anything with the text of Lewis Carroll.

But in this case, Adobe decided to install the “rights” of DRM to this e-book in such a way that we can neither copy excerpts from it, nor print, nor even lend it or donate it to a friend.

Blind and visually impaired people need to convert books into a special format so that they can read them, but often DRM prohibits it. Although they have the legal right to convert the books they bought, in practice DRM does not allow it.

Another example is regional DVD coding, which prevents you from watching movies that you legally bought if you bought them in a different part of the world where you bought your DVD player.

These are things that you have a full legal right to do. But this will not help you if the company decides to establish DRM-restrictions on its product, which will not give you the technical ability to do it. But such restrictions do not just complicate the use of their legal rights to work, a copy of which you bought. In the form in which the laws are written today, they forbid you to even try to do it.

This is completely unreasonable. Bypassing DRM should not be illegal, and we should think about imposing a ban on DRM technologies that limit legal use.

In doing this, we must define “DRM” as “any technical system that restricts a consumer in actions for which he has a legal right.” Since copyright laws of all countries have exceptions and limitations for certain uses (such as the right to personal copies), this definition includes all systems that you normally think of as DRM.

It makes no sense to promote a balanced and fair copyright in parliaments, if at the same time large multinational corporations write their own laws and seek to enforce them by technical means.

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I was not going to publish the book here in full, as it may seem naive, designed for the European mentality, contains many well-known and already discussed many times, including those on the topic. However, if you wish, you can familiarize yourself with the full translation here .